Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1887-06-03

statute. The judgment rs reversed and
the cause remanded.
Rye Miles vs.. State, from Scurry; opin-
ion by Wilson, J. The indictment in
this case undertakes to charge an aggra-
waited assault, for striking and beating
with q pistol, without alleging that the
pistol was deadly weapon and the as
sault premeditated. The indictment is
good for simple assault. The venue was
| not proven and it was not sufficient that
| the judge and jury were satisfied Of their
own knowledge that the offense was COM
mitted within the Jurisdiction of the
court. 1t was error for the court to in
struct the jury, if the offense was COM
mitted in either Kent or Garza; the venue
wss sufficiently proved as the Indictment
alleged that the offense was committed In
Scurry. The Judgment is reversed and
the cause remanded for trial as simple
assault.
John Glass vs.. State, from Washington;
opinion by White, 2. ]. Appellant wss
convicted under Article 797 Penal Code of
fraudulently disposing of mortgsged
property. The indictment was correct
and there was no variance between it and
the mortgage in the description of the
property sufficient to rule the mortgage
out as testimony. The court
erred however in failing to
submit to the jury the defense
raised by the testimony of Jim Johnson
who testified that he was present at the
time appellant exchanged the mOrtgaged
horse with one IsascS; that appellant
said the exchange Woulh not be complete
until he saw the MORTGAGE of his horse.
If this testimony was true the exchange
10 n ba
and not the court, who should pass on
the truth or falsity of JohnSOn's testi-
mony For failure of the court to pre-
sent the law applicable to a material de-
tense, the judgment is reversed and the
cause remanded.
Ed Osborne vs.. the State, from Col
orado; opinion by White, 2 J This was
conviction of murder in the first degree,
the penalty assessed at death.
The amendment of the Indictment after
the parties had announced as ready for trial
was error, but no exception being reserved
the defect was cured by the verdict.
One of the jurors in the trial Of the
csse named Craige when his name was
called the sheriff announced that lis
return was mistake as Craige had never
been summoned. The court over defend
ants objection proceeded to organize the
jury out OF the remainder of the
special venire. Il made no diff
ference to defendant that Craige
was not summoned as he had been led to
believe that he was summoned, and when
it was found that he was not summoned
if defendant refused to waive, and in
sisted upon having him there, TIE court
should have stopped the proceedings and
placed the jurors accepted in custody
end postponed the case until Cralge was
summoned, or discharged those jurors
selected and ordered q new special yenire
and had { copy Of the same served on de-
PENDANT, as he was entitled TO at least one
days service cf the jury who were to sit
on his case, and as h. has bscn denied q
right guaranteed by Law the Judgment
must be reversed.
The instruction of the court to the eff
feet that killing While lying in wait WAS
murder in the first degree, was errone-
Gus, as the lying in wait WAS simply evil
dence of express malice. The Judgment
is reversed and the case remanded for
new trial.